by Austin Sarat, Lawrence Douglas and Martha Merrill Umphrey (eds). Stanford University Press, 2010. 264pp. Cloth, $65.00. ISBN: 9780804771542. eBook. $65.00. ISBN: 9780804775151.
Reviewed by Leila Kawar, Department of Politics, Bates College. E-mail: lkawar [at] bates.edu.
LAW AND THE STRANGER is the sixth entry in the Amherst series of publications in Law, Jurisprudence and Social Thought, all of which have been edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey. The essays contained in the book were originally prepared for and presented as a seminar series at Amherst College. In their introduction, “Negotiating (with) Strangers,” the editors present the collection as a meditation on “the ways in which law, and in particular liberal legal regimes, identifies and responds to strangers within and across their borders, both historically and in the present day” (p.1). The six essays that ensue address this theme, with varying degrees of directness, from perspectives that range from critically-oriented sociolegal analysis, to jurisprudence, to literary interpretation.
The editors’ introduction binds the volume together and it provides a rich review of scholarly work in the field of political theory, both classical and contemporary, as it relates to the volume’s broad theme. The avowed willingness of the editors to draw insights from both liberal and critical materialist frameworks is reflected in their choice to solicit contributions from scholars working in these divergent traditions. Adopting an approach drawn from the humanities, the chapters are grouped not according to theoretical affinity but rather as pairs within (somewhat ad hoc) subthemes. Nevertheless, this theoretical ecumenism provides the reader with a provocative challenge to follow the editors in thinking inductively and synthetically rather than being caught up on the points of irreconcilability among the theories invoked.
Among the contributions that problematize the constructed nature of the citizen/stranger division, two stand out. Pheng Cheah’s chapter “Necessary Strangers: Law’s Hospitality in the Age of Transnational Migrancy” draws on two cases of the legal incorporation/exclusion of migrants in East and Southeast Asia to take issue with Kant’s conceptualization of hospitality as the right not to be treated with hostility. Kant foresaw global commerce as leading to the state of “perpetual peace” in which sovereign restrictions on transnational right would diminish towards zero, allowing for a more open form of sociability such that foreigners’ rights would no longer be conditional and all rational beings would be fully included in moral calculations. Contemporary transnationalists have theorized globalization in much the same way, as a process eroding the distinction between citizen and alien. Yet Cheah shows that global circuits of migrant labor actually intensify the extent to which foreigners and other strangers are [*51] marked as separate from community. Global capitalism, far from bringing us closer to perpetual peace, instead produces permanent dislocation, so that subaltern workers are viewed as disposable by migrant-receiving states and remain “permanently in exile” even after returning to their “homelands.” Cheah emphasizes that migrant rights, even when framed as human rights, remain conditional because they are administered by the state. She finds Derrida’s conceptualization of pure hospitality (distinguished from the conditional hospitality of the law) to hold greater potential for inclusive justice, and nicely illustrates this form of unconditional hospitality by describing a cinematic rendering of the welcoming community generated informally among excluded and vulnerable migrant workers in Hong Kong and China, a form of solidarity that does not depend on law or state.
While undocumented migrants provide a face for the strangers produced by the contemporary forces of globalization, in the 19th century estrangement was just as likely produced by laws that excluded women and religious minorities from citizenship rights. Hilary M. Schor’s compelling essay explores the role of the “stranger” in George Eliot’s DANIEL DERONDA and, though using political theory less explicitly than Cheah, similarly emphasizes the way that estrangement has historically been produced through law. Eliot’s novel was written at a time when Liberal reforms were weakening communal bonds and turning British society into a “world of strangers” (p.184). In this context, encounters with strangers lead the protagonists to question the hierarchies through which they had previous understood the world. Moreover, when the heroine, Gwendolen Harleth, realizes that, by virtue of the legal disabilities imposed on women, she herself is a stranger to the law, she develops new-found sympathy for ordinary women’s lives and also acquires a sense of self-ownership that Schor suggests is a prerequisite for a more just society to be imagined. Schor argues that the novel’s explicit references to 19th century parliamentary reforms pertaining to Jews and women gestures at the importance Eliot attributed to legal struggles for inclusion. Yet it is the characters’ awakening to the knowledge that they are strangers even in the community in which they live that transforms them into agents who will carry forward the struggle for a more inclusive and welcoming society.
Writing in a completely different register, Paul Schiff Berman’s contribution focuses not on the coercive power of law to produce strangers but rather on the capacity of cosmopolitan jurisprudence to build bridges between plural legal domains. Berman draws on the work of Hannah Arendt, Iris Marion Young, and Robert Cover to advocate a pluralist and cosmopolitan approach in cases involving conflicts of law. The analysis has undertones of sociological jurisprudence, since Berman views a cosmopolitan approach to jurisdictional questions as a procedural innovation that would make law better suited to the contemporary context in which globalization has brought about a “deteritorialization of effects” (p.147). Unlike the traditional territorial approach in which jurisdiction is based simply on location, the cosmopolitan approach would apply the norms of the discursive community most implicated in the [*52] events of the case, since it is the members of this community who must ultimately choose to obey the judgment. In addition to producing law that is less formalistic and more coherent, this approach provides a solution to globalization that affirms differences rather than forcing courts everywhere to adopt a single normative regime. Globalization in this account entails increased interaction between normative orders that operate on an equal footing, and whose communities of strangers must find a means to communicate across their differences.
Liora Bilsky similarly adopts a vision of procedural jurisprudence as a potential bridge across “radical difference” in her essay analyzing the challenges to the legitimacy of Israeli law posed by the political trials of Palestinian opposition leaders. The essay is somewhat perplexing since Bilsky proposes a technical solution, jury nullification, that she admits is purely hypothetical. Israel does not have a jury system and, in any case, “jury nullification is unlikely to work in cases where it is most needed – namely, where the democratic system suffers from endemic problems of democratic participation” (p.119). Indeed, the pluralist framework upon which Bilsky relies seems particularly inappropriate to the Israel-Palestine context, where the logic of settler-colonial law has played a seminal role in transforming indigenous Palestinians into civic strangers (Kawar 2010). Rather than interrogating law’s capacity to produce exclusion, Bilsky directs her analysis towards identifying technical solutions through which the Israeli judiciary might better fulfill its institutional mandate and thereby preserve its international legitimacy.
Rogers Smith’s contribution likewise adheres to a liberal democratic theorization of law. Although its subject matter would seem to be most directly related to the theme of the book, the essay is almost overwhelmed by Smith’s detailed analysis of U.S. immigration jurisprudence. Smith argues that the most salient rationale for exclusion in U.S. law until the 20th century was not alienage but race. In the 20th century, law shifted to a regime of inclusiveness for those within the territory while the state encountered few legal constraints in matters of border control and foreign affairs. Smith expresses concern that, as part of the “War on Terror,” the latter approaches are now contaminating domestic law and threatening the rights of U.S. citizens, particularly though not exclusively those of Arab or Muslim background. This approach, squarely within the law, aims to pragmatically defend previously established rights that have recently come under threat; it does not address the way in which the distinction between “domestic” and “foreign” affairs is itself produced by law.
Within the range of theoretical approaches adopted by their contributors, Sarat, Douglas, and Umphrey tentatively place themselves somewhere in the middle. Their introduction addresses the question of “what is a stranger” by referring to Bonnie Honig’s constructivist argument in DEMOCRACY AND THE FOREIGNER that scapegoats need not be foreigners but that those excluded from a community are cast as foreigners. They likewise detail Derrida’s critique of the violence inherent in Kantian legal cosmopolitanism. However, the editors also devote substantial discussion to [*53] Seyla Benhabib’s neo-Kantian theorization of law’s role in facilitating dialogue with the “other” and Will Kymlicka’s call for legal recognition of cultural difference. The introductory review of the literature concludes by relating Derrida’s figure of the “barbarian,” i.e. the absolutely excluded savage who cannot be interpolated by the law, to the Bush administration’s attempts to shield the Guantanamo Bay detention facility from judicial scrutiny. The Supreme Court’s eventual assertion of dominion over Guantanamo is presented as a laudable example of law preserving its rule of conditional hospitality, according some minimal social status to “alien enemy combatant” detainees who the administration had attempted to erase as legal subjects. The review of the literature thus ultimately leads to the following statement: “Debates about the rights that the United States will accord strangers-turned-barbarians have made us agonizingly self-conscious of the tensions in our own moral and legal commitment to the rule of law” (p.10). Referring to “the countermoves various institutions have made” against torture and indefinite detention, Sarat, Douglas, and Umphrey suggest that justice can be achieved when law and legal institutions are more self-conscious and reflective. In the final essay in the volume, Kenji Yoshino adopts a somewhat similar faith in the democratic possibilities created when law is made more open to self-conscious debate via dissents, hortatory laws, and dicta.
Yet we should ask ourselves: what, if anything, is lost in this call for more “self-conscious” legality? The contributions by Cheah and Schor, while not dismissing law as a forum of struggle, place important emphasis on law’s capacity to create and reinforce exclusion. Indeed, the perils of struggles for justice confined to the terrain of legality are illustrated by the continuing saga of liberal law’s attempts to moderate the worst excesses of the “War on Terror.” Largely overlooked in debates about the Guantanamo public interest litigation is the fact that the Obama administration, while moving slowly to close Guantanamo, has not abandoned attempts to exclude suspected “enemy combatants” from the law, but has instead shifted to a strategy in which unmanned drones now carry out extrajudicial executions of these “barbarians.” This suggests that relying primarily on legality, with its inevitable link to the state, is likely to prove unsatisfactory if the goal is to move beyond narrowly statist rule of law and in the direction of a more broadly inclusive world.
Indeed, it is the breadth and permeability of the project’s parameters that prove to be this volume’s greatest strengths. Legal categories – immigrants, aliens, refugees, non-citizens, etc – structure policy debates and also seem to limit the horizons of struggles for social justice. By focusing on the character of “the stranger” the editors escape from the narrowness of these immigration policy debates. This crucial move creates space for interpretations of novels, films, and other cultural texts that address exclusion and estrangement and simultaneously imagine a world that does not simply reproduce these structures. The effort to traverse the conceptual borders of immigration law, for which the editors are to be commended, enables the volume to make an important intervention in [*54] discussions of immigration and citizenship, while highlighting the potential of these issues to generate provocative sociolegal analysis.
Honig, Bonnie. 2003. DEMOCRACY AND THE FOREIGNER. Princeton University Press.
Kawar, Leila. 2010. “Legality and [Dis]membership: Removal of Citizenship and the Creation of ‘Virtual Immigrants.’” CITIZENSHIP STUDIES. 14: 573-588.
© Copyright 2011 by the author, Leila Kawar.